Madras High Court
K.S.Venkatesh vs M.Velu on 21 June, 2022
Crl.O.P.No. 18728 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.06.2022
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No. 18728 of 2020
K.S.Venkatesh ... Petitioner
Vs.
M.Velu ... Respondent
PRAYER: Criminal Original Petition is filed under Section 389(3) of
the Code of Criminal Procedure, to set aside the condition Nos.2, 4 and 5
imposed in the order of suspension of sentence dated 28.01.2020 made in
CMP.No.140 of 2020 in C.A.No.15 of 2020 passed by the learned
Principal Sessions Judge, Namakkal.
For Petitioner : Mr.N.Manokaran
For Respondent : Mr.C.Ramaraj for
Mr.M.Guruprasad
1/7
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Crl.O.P.No. 18728 of 2020
ORDER
This Criminal Original Petition has been filed to challenge the
order of suspension of sentence dated 28.01.2020 in CMP.No.140 of
2020 in C.A. No.15 of 2020 passed by the learned Principal Sessions
Judge, Namakkal and thereby imposed the condition that the petitioner
shall deposit 20% of the compensation amount before the Trial Court
within a period of 60 days for the offence punishable under Section 138
of the Negotiable Instruments Act.
2. The learned counsel for the petitioner would submit that the
respondent lodged the complaint for the offence punishable under
Section 138 of the Negotiable Instruments Act in STC. No.12 of 2017 on
23.05.2016. The Trial Court convicted the petitioner and sentenced him
to undergo imprisonment for a period of six months and also directed
him to pay a compensation of Rs.4,51,600/- by the judgment dated
10.12.2019.
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Crl.O.P.No. 18728 of 2020
3. Aggrieved by the same, the petitioner preferred an appeal in
C.A.No.15 of 2020 and also filed CMP.No.140 of 2020 for suspension of
sentence. The Trial Court suspended the sentence on condition to the
petitioner to deposit 20% of the compensation amount within a period of
60 days as per Section 148 of the Negotiable Instruments Act.
4. The learned counsel for the petitioner would further submit that
the provisions of Section 148 of the N.I. Act has to be applied
prospectively with respect to the offence committed after insertion of
Section 148 of the Act said on 01.09.2018. The amended provision is
prospective in nature and confined to the cases where offences were
committed after the introduction of the amendment namely on
01.09.2018, in the case of G.J. Raja dated 30.07.2019 in C.A. No.1160 of
2019. Whereas the Hon'ble Supreme Court of India, in the case of
Surinder Singh Deswal @ Col.S.S.Deswal and others Vs. Virender
Gandhi dated 29.05.2019 reported in 2019 11 SCC 341 has held that,
“8.1 Having observed and found that because of the
delay tactics of unscrupulous drawers of dishonoured
cheques due to easy filing of appeals and obtaining
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Crl.O.P.No. 18728 of 2020
stay on proceedings, the object and purpose of the
enactment of Section 138 of the N.I. Act was being
frustrated, the Parliament has thought it fit to amend
Section 148 of the N.I. Act, by which the first
appellate Court, in an appeal challenging the order
of conviction under Section 138 of the N.I. Act, is
conferred with the power to direct the convicted
accused – appellant to deposit such sum which shall
be a minimum of 20% of the fine or compensation
awarded by the trial Court. By the amendment in
Section 148 of the N.I. Act, it cannot be said that any
vested right of appeal of the accused – appellant has
been taken away and / or affected. Therefore,
submission on behalf of the appellants that
amendment in Section 148 of the N.I. Act shall not be
made applicable retrospectively and more
particularly with respect to cases/complaints filed
prior to 1.9.2018 shall not be applicable has no
substance and cannot be accepted, as by amendment
in Section 148 of the N.I. Act, no substantive right of
appeal has been taken away and / or affected.
Therefore the decisions of this Court in the cases of
Garikapatti Veeraya (supra) and Videocon
International Limited (supra), relied upon by the
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Crl.O.P.No. 18728 of 2020
learned Senior counsel appearing on behalf of he
appellants shall not be applicable to the facts of the
case on hand. Therefore, considering the Statement
of Objects and Reasons of the amendment in Section
148 of the N.I. Act stated hereinabove, on purposive
interpretation of Section 148 of the N.I. Act as
amended, we are of the opinion that Section 148 of
the N.I. Act as amended, shall be applicable in
respect of the appeals against the order of conviction
and sentence for the offence under Section 138 of the
N.I. Act, even in a case where the criminal
complaints for the offence under Section 138 of the
N.I. Act were filed prior to amendment Act
No.20/2018 i.e., prior to 01.09.2018. If such a
purposive interpretation is not adopted, in that case,
the object and purpose of amendment in Section 148
of the N.I. Act would be frustrated. Therefore, as
such, no error has been committed by the learned
first appellate court directing the appellants to
deposit 25% of the amount of fine/compensation as
imposed by the learned trial Court considering
Section 148 of the N.I. Act, as amended.”
The order of the Hon'ble Supreme Court of India has categorically
held that Section 148 of the N.I. Act as amended, shall be applicable in
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Crl.O.P.No. 18728 of 2020
respect of the appeals against the order of conviction and sentence for the
offence under Section 138 of the N.I. Act, even in a case where the
criminal complaints for the offence under Section 138 of the N.I. Act
were filed prior to amendment Act No.20/2018 i.e., prior to 01.09.2018.
5. Considering the above facts and circumstances of the case, the
Appellate Court, while suspending the sentence of the petitioner has
rightly imposed the condition. Therefore, this Court does not find any
infirmity or illegality in the order passed by the trial Court and hence,
the same is liable to be dismissed. Accordingly, this Criminal Original
Petition is dismissed.
21.06.2022
Internet: Yes
Index: Yes/No
Speaking/Non-speaking order
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To
1.The Principal Sessions Judge,
Namakkal.
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Crl.O.P.No. 18728 of 2020
G.K.ILANTHIRAIYAN, J.
drl
Crl.O.P.No. 18728 of 2020
21.06.2022
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